The opinion of the court was delivered by: JUNE L. GREEN
This case comes before the Court on the parties' cross-motions for summary judgment. Because the Court finds that no "final agency action" has occurred in this matter, it will dismiss this case without prejudice.
The Plaintiffs are United States citizens who have been employed in the past and wish to be employed in the future as captains or crew on board tuna fishing vessels documented under the flags of Mexico, Venezuela and Vanuatu. The vessels on which Plaintiffs are employed engage in the encirclement of dolphins during fishing operations for yellowfin tuna in the eastern tropical Pacific Ocean. (Pls. Ex. 7.) Such encirclement is termed a "taking" within the meaning of the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1362(13) (hereinafter, "MMPA"). On January 7, 1994, counsel for the Plaintiffs wrote a letter to the General Counsel of the National Oceanic and Atmospheric Administration (hereinafter, "NOAA") requesting a "definitive statement" of the NOAA's interpretation of Section 307(a)(2) of the International Dolphin Conservation Act of 1992, 16 U.S.C. § 1417(a)(2) (hereinafter, "IDCA")
and whether it applied to United States citizens who work as captains or crew on foreign flag tuna fishing vessels. (Pls. Ex 2.) In the letter, counsel for Plaintiffs stated,
My clients have received the preliminary views of the National Marine Fisheries Service (NMFS) that the agency plans to enforce a prohibition contained in the 1992 Amendments that reads as follows: It is unlawful...for any person or vessel that is subject to the jurisdiction of the United States, intentionally to set a purse seine net on or to encircle any marine mammal during any tuna fishing operations after February 28, 1994.... The preliminary NMFS position would apply the prohibition on setting on dolphin schools ... to U.S. citizens who are working on foreign-flag tunaboats.... (Pls. Ex. 2 at 2-3.)
Counsel for Plaintiffs warned the General Counsel for the NOAA that the effective date of the ban was over six weeks away and that if she confirmed the alleged preliminary views of the NMFS, his clients would be left with little choice but to seek judicial relief. (Pls. Ex. 2 at 3.)
On February 24, 1994, the Plaintiffs filed a Complaint for Declaratory and Injunctive Relief to prevent the Defendants from enforcing the Encirclement Provision of the IDCA against Plaintiffs when they work on foreign flag vessels.
The next day, February 25, 1994, General Counsel of the NOAA sent counsel for Plaintiffs a letter which stated that the NOAA General Counsel's staff had reviewed counsel for Plaintiffs' letter of January 7, 1994. (Pls. Ex. 1.) After quoting the relevant portion of the Encirclement Provision and indicating that the statutory exceptions were inapplicable, the NOAA General Counsel stated,
It is my opinion that U.S. citizens may not lawfully engage in any foreign tuna fishing operations after February 28, 1994 that would involve the intentional encirclement of marine mammals unless they are engaged in scientific research approved by the IATTC. In the near future the National Marine Fisheries Service will issue rules to inform the public of this interpretation. (Pls. Ex. 1.)
Defendants filed a summary judgment motion and asked this Court, inter alia, to dismiss Plaintiffs' case because the Plaintiffs seek pre-enforcement judicial review in the absence of any administrative enforcement actions resulting in final agency action.
Since federal courts exercise limited jurisdiction, this Court can only review the actions of an agency if authorized by statute. Bell v. New Jersey, 461 U.S. 773, 777, 76 L. Ed. 2d 312, 103 S. Ct. 2187 (1983). In order to review the NOAA's interpretation of the Encirclement Provision, this Court must base its jurisdiction on 5 U.S.C. § 704 which permits federal district courts to review "final agency action" for which there is no other adequate remedy in Court. Administrative Procedure Act § 10(c), 5 U.S.C. § 704. Since "final agency action" is an independent jurisdictional requirement it must be met first before moving on to the question of ripeness. Public Citizen v. Office of U.S. Trade Representative, 297 U.S. App. D.C. 287, 970 F.2d 916, 921 (D.C. Cir. 1992). The requirement of "final action" recognizes that courts must not interfere with the executive function, whether exercised by executive officials or administrative agencies, by entertaining a lawsuit that challenges an action that is not final. National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C. Cir. 1971).
By enacting a provision permitting judicial review of "final agency action" for which there is no other adequate remedy in a court, Congress intended to cover a broad spectrum of administrative actions, and the Supreme Court has reaffirmed that intent by holding that the Administrative Procedure Act's generous review provisions must be given a hospitable interpretation. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); See, National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 695 (D.C. Cir. 1971). Judges reviewing administrative actions must interpret the "finality" element in a flexible and pragmatic way. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The term "agency action" includes any "rule", and that in turn is defined by the Act as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy." Administrative Procedure Act §§ 2(c), 2(g), 5 U.S.C. §§ 551(4), 551(13). The term "agency action" thus embraces an agency's interpretation of its law, and it is the finality of that action that a Court must consider. Id. The Supreme Court has explained that the relevant considerations in determining finality are whether the process of administrative decision-making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences flow from agency action. Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 27 L. Ed. 2d 203, 91 S. Ct. 203 (1970). A court must decide whether the agency's position is definitive and whether it has a direct and immediate effect on the day-to-day business of the parties challenging the action. Natural Resources Defense Council, Inc. v. E.P.A., 22 F.3d 1125, slip op. at 14 (D.C. Cir. 1994). An agency position is not final if it is only the ruling of a subordinate official. Franklin v. Massachusetts, 120 L. Ed. 2d 636, 112 S. Ct. 2767, 2773 (1992). The Court must distinguish a tentative agency position from a situation where the agency views its deliberative process as sufficiently final to demand compliance with its announced position. Natural Resources Defense Council, Inc. v. E.P.A., 22 F.3d 1125, slip op. at 14 (D.C. Cir. 1994). The absence of a formal statement of the agency's position is not always dispositive, otherwise an agency could avoid judicial review simply by choosing the form of a letter to express its definitive position on a general question of statutory interpretation. Id. In addition, agency inaction may represent effectively final agency action that the agency has not frankly acknowledged. Her Majesty the Queen v. United States EPA, 286 U.S. App. D.C. 171, 912 F.2d 1525, 1531 (D.C. Cir. 1990). Even if the agency claims to be in the process of rulemaking the Court must be aware that the agency always retains the power to change its policies. If the possibility of unforeseen amendments were sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely. American Petroleum Institute v. United States EPA, 285 U.S. App. D.C. 35, 906 F.2d 729, 739-40 (D.C. Cir. 1990).
The Court has found final action in a wide array of pronouncements and communications having the contemplation and likely consequence of "expected conformity". National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C. Cir. 1971). The spectrum of communications ranges from obvious agency action such as adjudications and regulations to informal pronouncements such as opinion letters. Informal pronouncements of policy provide a court with more difficult finality issues. Plaintiffs case, involving the legal opinion letter of the NOAA General Counsel, presents the Court with this precise problem. In other words, the Court must determine whether the February 25, 1994 letter of the NOAA General Counsel qualifies as "final agency action" under 5 U.S.C. § 704.
The case of National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689 (D.C. Cir. 1971), offers guidance in the determination of whether informal agency opinion letters qualify as "final agency action." In that case the attorney for the National Automatic Laundry and Cleaning Council (hereinafter, "NALCC") sent a letter to the Administrator of the Wage and Hour Division of the Department of Labor inquiring about the effect of recently passed amendments to the Fair Labor Standards Act on the status of employees of coin-operated laundries. The Administrator replied to the NALCC attorneys and stated that the legislative history of the amendments clearly indicated that the employees of coin-operated laundries ...